McClellan v. Board of Regents of State University

• Decision Date: 29 April 1996
• Citation: 109 Ed.LawRep. 997,921 S.W.2d 684
• Parties: 109 Ed. Law Rep. 997 Dr. Powell D. McCLELLAN, Plaintiff/Appellant, v. The BOARD OF REGENTS OF the STATE UNIVERSITY and Community College System of Tennessee and Middle Tennessee State University, Defendant/Appellee.
• Court: Tennessee Supreme Court

Page 684

921 S.W.2d 684

109 Ed. Law Rep. 997

Dr. Powell D. McCLELLAN, Plaintiff/Appellant, v. The BOARD OF REGENTS OF the STATE UNIVERSITY and Community College System of Tennessee and Middle Tennessee State University, Defendant/Appellee.

Supreme Court of Tennessee at Nashville.

April 29, 1996.

Charles Hampton White, Cornelius & Collins, Nashville, for Appellant.

Charles W. Burson, Attorney General & Reporter, James C. Floyd, Assistant Attorney General, Nashville, for Appellee.

WHITE, Justice.

This case poses substantive and procedural questions pertaining to an appeal under the Uniform Administrative Procedures Act. The first issue is whether substantial and material evidence supports the finding of a violation of the sexual harassment policy of the Tennessee State Board of Regents and of Middle Tennessee State University. The second issue is whether the procedures followed in conducting the administrative hearing were appropriate. For the reasons set forth, we affirm the part of the decision of the Court of Appeals which upheld the finding of sexual harassment. We reverse the part of that court's decision which vacated one finding and the sanction order. We remand the case for the imposition of the sanctions set forth in the final order of the administrative tribunal.

I.

Dr. Powell McClellan is a twenty-two year veteran of the Middle Tennessee State University faculty. There, he teaches in the Department of Health, Physical Education, and Recreation. He holds Ed.D. and M.E.D. degrees from the University of Arkansas. In the summer of 1991, Dr. McClellan taught a course in the physiology of exercise, a portion of which involved teaching the students to administer electrocardiograms.

During the 1991 summer session, Ms. Lea White, an undergraduate student, worked as Dr. McClellan's assistant. On July 25th, three female students were performing an EKG on Ms. White when they began experiencing difficulty with the equipment. Ms. White removed her bra in order to try to improve the electrode connections. The students turned the equipment off and back on to try and restart it. When it still would not function properly, one of the students went, at Ms. White's direction, to seek verbal instructions from Dr. McClellan. Dr. McClellan was asked for instructions and asked not to enter the room as Ms. White was not wearing a shirt. He entered, nonetheless, removed a tee shirt which had been given Ms. White to cover with, and remarked that Ms. White was "no Dolly Parton."

The next day Dr. McClellan asked Ms. White if she believed in "equal rights." When she said she did, he inquired why women should not remove their shirts for EKG procedures as men did. He also commented that since she had several brothers, being nude around males should not affect her.

Ten days later Ms. White made a formal complaint against Dr. McClellan to Dr. Whaley, the department head. Dr. Whaley referred Ms. White to the University's affirmative action officer who investigated the complaint and, eventually, instituted charges. Dr. McClellan was charged with five violations of Tennessee State Board of Regents' policies. Two of the five pertained to Ms. White. In addition to the incident regarding the EKG, the charges included Ms. White's allegation that Dr. McClellan had required her to "get coffee ... [and] run errands for him which she did out of fear of retaliation." The remaining three allegations did not pertain to Ms. White, did not form the basis for the sanctions against Dr. McClellan, and will not be discussed in this opinion. ¹

The Notice of Hearing and Charges sent to Dr. McClellan included the following statement: "The hearing will be conducted in accordance with the Tennessee Uniform Administrative Procedures Act, T.C.A. § 4-5-101, et seq." Upon request, a hearing was conducted. A hearing officer, John David Hayes, presided over the hearing. A hearing committee consisting of two professors, a graduate student, and an undergraduate student served as the triers of fact.

Before the proceeding began, the hearing officer described his role as being responsible for ruling on evidentiary matters and matters of law. He introduced the committee and described their role as factfinders. Neither side questioned or objected to the procedure. At the close of the hearing, the hearing officer announced that the "Committee will not render a decision today." After inquiring about when counsel might file proposed findings of fact and conclusions of law, the hearing officer concluded:

The committee will go ahead and take this under advisement, and we'll advise you at another time as to what we need to do with the findings of fact and conclusions of law.

On December 16, 1991, an Initial Order was issued. The Order contained factual findings ² and legal conclusions and was signed by the hearing officer and the members of the hearing committee. ³ It unanimously ordered that: (1) Dr. McClellan submit to sensitivity counseling "to assist him in conducting more appropriate and professional interactions with students;" (2) Dr. McClellan not be allowed to teach the only section of a required course offered for three years and that course substitutions be allowed for students; (3) Dr. McClellan be required to administer the EKG procedure pursuant to formally developed and approved guidelines; (4) students be informed that the EKG procedure is voluntary; and (5) Dr. McClellan not be allowed to teach the next summer session for which he was scheduled to teach. Additionally, the Order specified the review procedures. Specifically, it detailed the procedure for filing a Petition for Appeal to the university president and the procedure for filing a Petition for Reconsideration of the Initial Order. See Tenn.Code Ann. §§ 4-5-315, -317 (1991 Repl.).

Dr. McClellan appealed the Initial Order. He challenged the sufficiency of the evidence, the competency of the committee, and the severity of the sanctions. Although he did not cite procedural irregularities as a basis for his appeal, Dr. McClellan characterized the Order as reflecting "an intemperate, emotional response to evidence by a committee consisting of laymen, untrained in interpretation of TBR policies or policies of MTSU, and ... grossly improper, and excessive...." He requested an opportunity to present briefs and oral argument before the Agency. ⁴

Following the filing of briefs, University President James E. Walker filed a Final Order on May 26, 1992, which upheld the Initial Order in its entirety. Pursuant to Tennessee Code Annotated Section 4-5-322, Dr. McClellan petitioned the Davidson County Chancery Court for review, reversal, and vacation of the Final Order. The petition alleged that: (1) irrelevant, prejudicial evidence was admitted against Dr. McClellan; (2) the hearing officer did not instruct the hearing committee on legal principles, including the standard of proof and did not allow an opportunity to file proposed findings and conclusions; (3) Dr. McClellan's conduct was not a violation of the Board of Regents policy; (4) the sanctions imposed were unconstitutional in that they unlawfully restrict the terms and conditions of employment; (5) the hearing procedure used violated the law; and (6) the President's findings were arbitrary, capricious, and constituted an abuse of discretion.

The Chancellor affirmed the Final Order following a review under Tennessee Code Annotated Section 4-5-322. Specifically, the Chancellor found that substantial and material evidence supported the conclusion that Dr. McClellan had violated the policy and guidelines of the Tennessee State Board of Regents. Additionally, the Chancellor upheld the sanctions since "judicial review is limited to considering whether the remedy is illegal or an abuse of discretion" and the remedy imposed did not constitute either an illegality or an abuse of discretion. The Chancellor declined to address the alleged procedural irregularities since the "procedural issues cannot be raised for the first time on judicial review."

On his appeal as of right to the Court of Appeals, Dr. McClellan raised the same two issues he presents to this Court regarding the sufficiency of the evidence and the procedures employed. The Court of Appeals affirmed the finding of sexual harassment based on the EKG incident, upheld the procedures used to conduct the hearing, but dismissed the allegations pertaining to Dr. McClellan's demeaning demands holding that the initial charge did not give notice of the allegations. Consequently, the Court of Appeals modified the sanctions imposed to exclude those related to that incident and remanded to the tribunal.

II.

We begin our review with an in-depth analysis of the statutes that outline the procedure to be used under the Uniform Administrative Procedures Act for hearings of this kind.

The Uniform Administrative Procedure Act sprawls through dozens of sections of Title 4, chapter 5 of Tennessee Code Annotated. While it focuses on both an agency's power to make rules and its power to determine contested cases under its rules, it is only the latter subject that concerns us here. The entire chapter, however, is entitled to a "liberal construction [with] any doubt as to the existence or the extent of a power conferred ... resolved in favor of the existence of the power." Tenn.Code Ann. § 4-5-103(a) (1991 Repl.).

Part 3 of the Act sets forth the various procedures for hearing and determining contested cases at the agency level and on appeal. In any contested case, the parties are first entitled to notice, which must include "[a] statement of the ... nature of the hearing, ... [a] statement of the legal authority and jurisdiction under which the hearing is to be held, ... and [a] short and plain statement of the matters asserted." Tenn.Code Ann. § 4-5-307(b)(1)(2) & (3) (1991 Repl.). Here, Dr. McClellan was advised that he could appear before a hearing committee for a hearing conducted in accordance with...